This Criminal Revision is directed against the order dated 7-1-2004 passed by the' learned Additional Sessions Judge, Sargodha vide which, while holding that respondent/accused Muhammad Hayat to be a juvenile in terms of Juvenile Justice System Ordinance, 2000, was directed to he tried separately.
2. Facts in brief are that a case (vide F.I.R. No, 105 dated2-8-2002, under section 302/34, P.P.C. Police Station Jhawarian, District Sargodha) was registered for the murder of Muhammad Yar. None was named as an accused. However, during investigation two accused were challaned, namely, Muhammad Hayat (respondent) and co-accused Muhammad Farooq. The former moved an application that he was below of eighteen years of age, the matter was referred to the Medical Superintendent, D.H.Q. Hospital, Sargodha who constituted a Medical Board and in terms of the report dated 2-12-2003, the Radiologist opined as under:-- "Considering X-Ray of hand, wrist, elbow, shoulder, pelvis, knee, ankle, clavicle, the radiological age in my opinion is about seventeen years". In the same report, the Medical Board consisting of Medical Superintendent (Chairman), Chief Physician and Radiologist (members), held as under:-- "Considering general appearance and the report of Radiologist, the Board is of the unanimous opinion that the age of Muhammad Hayat son of Qari Mehboob Elahi is about seventeen (17) years". Learned trial Court, gave preference to the afore-referred reports and passed the impugned order, hence this revision.
3. Learned counsel for the petitioner, in support of this petition, submitted as under:--
(i) That and Muhammad Hayat is above eighteen years of age and he has wrongly been declared as a person below eighteen years;
(ii) That the report of the Medical Board is not binding on the Courts while determining the question of age and has to prefer the birth certificate, if available on record. In support of the submissions he relied on Muhammad Ajmal v. State through Advocate-General, Punjab PLD 2003 SC 1; Sher Baz Khan and others v. Mst. Malkani Sahibzadi Tiwana and others PLD 2003 SC 849 and Mehboob Ahmad v. The State and 2 others 2002 PCr.LJ 2034.
4. Learned counsel for respondent Muhammad Hayat defended the impugned order. According to him, the Medical Board was constituted with the consent of the parties, as there was some over- writing in the relevant column of the Birth Register, which was being relied upon by the prosecution.
He added that when two views are possible, it is asettled principle of law that the view, which favours the accused, has to be given preference. In support of the submissions made, he placed reliance on Naseer Ahmad v. The State PLD 2000 SC 813 and Umar Hayat v. Jahangir and another 2002 SCM R 629.
5. I have heard learned counsel for the parties, have given anxious consideration to the submissions made and have also gone through the precedent case-law cited at the bar.
6. The observation of the learned trial Court in the impugned order that the matter was referred to the Medical Board for determination of age of respondent Muhammad Hayat, with consent, has not been controverted by the petitioner's learned counsel. Even the contention of respondent's learned counsel that there was some over-writing in the relevant column of the Birth Register has not been seriously disputed by petitioner's learned counsel while arguing his case. Moreover, section 7 of the Juvenile Justice System Ordinance, 2000 mandates as under:--- "7. Determination of age.--If a question arises as to whether a person before it is a child for the purposes of this Ordinance, the Juvenile Court shall record a finding after such inquiry which shall include a medical report for determination of the age of the child."
7. The Medical Board not only relied upon the report of the Radiologist but also independently examined respondent Muhammad Hayat to arrive at the conclusion referred to in para. 2 above.
7-A. The precedent case-law to which reference has been made by petitioner's learned counsel is of no avail to him as the facts and circumstances of the instant case are distinguishable. In Sher Baz Khan and others v. Mst. Malkani Sahibzadi Tiwana and others (PLD 2003 Supreme Court 849), the august Supreme Court decided a civil matter. No opinion of the Medical Board, with regard to the age of the person in question was produced in evidence and in those circumstances the Court preferred the entries made in the Birth Register and Matriculation Certificate qua the age of the said person. In Mehboob Ahmad v. The State and 2 others (2002 PCr.LJ 2034), the judgment of the august Supreme Court reported in Muhammad Rafique, v. The State (1987 PCr.LJ 1360), was relied upon but the latter judgment would not be of much help to the petitioner as it is an observation in a bail matter decided much prior to the promulgation of the Juvenile Justice System Ordinance, 2000. Even in the said case, the Court was persuaded to grant the accused bail on account of tender age as both, the Medical Certificate given by the Police Surgeon and the Certificate about the entry in the Register of Birth maintained by the KMC indicated that he was below, eighteen years of age. Muhammad Ajmal v. State through Advocate-General Punjab (PLD 2003 SC 1) is also distinguishable as the august Supreme Court upheld the concurrent judgments of the Courts below dismissing convict's bail and the question of the Medical Board's opinion, with regard to the age of the accused, was not a moot point.
8. The case-law relied upon by respondent Muhammad Hayat's learned counsel, is more relevant to the facts and circumstances of the instant case. In Naseer Ahmad v. The State (PLD 2000 SC 813), it was held as under:- It may further be noticed that mere reliance on the School Leaving Certificate by the trial Judge as also by the learned Single Judge of the High Court was not enough to come to a definite conclusion as to the age of the minor at the time of the commission of the offence. Additionally for that purpose, the ossification test or any other medical test should have also been got conducted and the age of the convict appellant determined in accordance where with and then decided the case accordingly". Similarly, in Umar Hayat v. Jahangir and another (2002 SCM R 629), the august Supreme Court observed that "In any case, by now it is well-settled law that where two views are possible, the view in favour of the accused is normally to be accepted".
9. For what has been discussed above I do not find any illegality or material irregularity in the impugned order to warrant interference in the revisional jurisdiction of this Court. The petition, having no merit, is accordingly dismissed.